Operating agreement for whistleblower systems: What you should pay attention to

What is a Works Agreement?
A works agreement is a written agreement between the employer and the works council that establishes the framework conditions and procedural rules for the internal reporting point in the company. A works agreement should include the following points:

Scope of Application: The works agreement should clearly state which area of the company the internal reporting point applies to.
Purpose and Objectives: The works agreement should define the purpose of the internal reporting point in the sense of the Whistleblowing Act (HinSchG in German), e.g., uncovering violations of laws, regulations, company policies, or ethical standards. The system’s goals, such as promoting transparency, integrity, and risk management, can also be set.
Responsibilities and Tasks of the Reporting Point: The works agreement should clearly regulate the duties and responsibilities of the reporting point. These include, for example, receiving information, checking for relevance, forwarding it to the responsible contact persons in the company, as well as documenting and tracking reported incidents.
Access to the Reporting Point and Digital System: The works agreement should inform about how the internal reporting point can be reached (e.g., link to the reporting point). In the case of a digital internal reporting point (e.g., an online reporting platform), it should be clearly stated which system is used and information on data security standards should be explained.
Reporting Procedure: The works agreement should regulate the procedure for reporting information to the reporting point. It should set the different reporting channels for the whistleblower, such as a special email address, a hotline, or an anonymous online platform. In addition, it should specify how information can be submitted (e.g., in writing, orally, anonymously) and what information must be provided. It should also clarify that the whistleblower is protected from reprisals.
Confidentiality and Data Protection: An important aspect of the works agreement is the protection of confidentiality and data protection. It should be stipulated that the identity of the whistleblower is treated confidentially and no retaliatory measures are taken. Furthermore, it should be established that the information is only passed on to those persons responsible for investigating the reported incident. In the case of outsourcing the internal reporting point to an independent service provider (e.g., to a law firm, ombudsman), this should be named and the third party’s confidentiality should be noted. In addition, measures should be taken to protect the data security and the personal data of the whistleblower.
Handling of Information: The works agreement should regulate the procedure for investigating reported information. Clear guidelines and deadlines in the sense of the HinSchG should be named, how the reporting point deals with the information, how the investigation is conducted, and how the results are communicated. This can include who is responsible for the investigation, how cooperation with internal or external experts takes place, and what measures are taken to rectify violations. In addition, it should be regulated how the works council is involved in the investigation process and what rights it has in relation to the investigation.
Protective Measures and Sanctions: The works agreement should contain regulations for the protection of whistleblowers. These include measures to protect against disadvantage, discrimination, or dismissal in response to reporting misconduct. Sanctions for violations of whistleblower protection should also be established.
Communication and Reporting: The works agreement should contain clear regulations on how the internal reporting point is communicated within the company and how often reports are made about incoming reports, investigation results, and measures taken.
Review and Update: The works agreement should stipulate that the internal reporting point is regularly reviewed to ensure it is functioning effectively. If necessary, the agreement should be updated.

The lawyers and compliance experts at eagle lsp are happy to assist you in creating the works agreement for your reporting point!

As of: June 16, 2023